Plaintiff seeks to recover judgment against Judge
B. Holstead and Morgan & Lindsey, a commercial copartnership,
for injuries to her right foot and ankle resulting from
a fall sustained by her, caused by the heel of her shoe
hanging in an opening in the floor, adjacent to a metal
ventilator, of a store building in Ruston, La., owned by
said Holstead and leased by him to the copartnership.
This happened May 5, 1931.

In the original petition the lessee's name and
juridical entity are given as "Morgan & Lindsey Chain Stores,"
a corporation of the city of Jasper in the state of
Texas, of which B. Morgan, of same residence, is
president. It developed from the contents of exceptions
thereafter filed that the lessee was a copartnership and
not a corporation, and that its correct trade-name and title
is "Morgan & Lindsey," composed of B. Morgan and
B. G. Lindsey, of Jasper, Tex., and C. A. Morgan of
Monroe, La. The original petition and citation
thereunder were served on Holstead, April 5, 1932,
and on R. O. Stinson, Ruston manager of Morgan & Lindsey,
on same day. The citation served on lessee was
directed to Morgan & Lindsey Chain Store. On motion
of defendant this service and citation were set aside by
the court. After this was done, plaintiff filed a
supplemental and amended petition May 17, 1932, wherein
the errors in the original petition as to name and
legal character of said lessee were corrected, and this
amended petition, with copy of original petition, was
served on May 28. Exceptions of no cause or right of
action, of misjoinder, and a plea of prescription of one
year were filed by Morgan & Lindsey. These were
overruled. The plea of prescription is based upon the state
of facts pleaded therein, viz.: "That plaintiff herein alleges
that she received injury through the fault and negligence
of this defendant on May 5th, 1931; that the petition
filed herein April 4th, 1932, and the citations and
attempted services thereof are and were illegal, null and
void, and of no effect as to this defendant; and that the
so called amended and supplemental petition of plaintiff was
filed May 17th, 1932, and that such filing and the subsequent
service thereof both occurred more than one year after the
alleged accident, of which plaintiff complains."

All exceptions and pleas filed have been abandoned
except the plea of prescription.

Petitioner alleges that she frequently shopped in
defendant's place of business in Ruston, and when
injured she was therein for the purpose of making a
purchase, and, while being waited on by one of
the clerks, the heel of the shoe on her right foot
"got caught and fastened in a defective place in
the floor, (3)5C at or near a ventilator in said
floor, causing her to fall," inflicting certain painful
and permanent injuries for which defendants, as lessor and
lessee of said building, are liable to her. She further
alleges that the hole and defect in said floor, caused
by a floor board not reaching the ventilator,
and the ventilator itself being below the floor level,
is a defect not clearly visible to customers entering and
moving along the aisle from the front, but was known to,
or should have been known to, said owner and his lessee,
and should have been repaired by them; that thereby said
defendants failed in their legal duty to keep said
building in a safe condition for those coming therein
as customers; and that it was gross negligence on their
part to allow said defective condition of the floor to
remain as it was at the time she was injured. She avers
freedom from fault on her part. The elements of damages sued
for are enumerated as follows:

For professional services of Dr. J. J. Bennett

$85.00

To Ruston-Lincoln Sanitarium for X-ray

$10.00

For pain and suffering from the injuries and
bruises to her foot, ankle, and body

$3,000.00

For deformity of her foot and the injury to
her appearance in trying to move about

$2,500.00

For inability to perform her usual duties

$1,000.00

Defendant Holstead admits ownership of the building
occupied by Morgan & Lindsey and lease thereof
by him to them. In all other respects he denies the
allegations of the petition.

Morgan & Lindsey admits lease and occupancy of
the Holstead building to conduct a general mercantile
business therein, and that same was open to its customers
and to the public generally. All other allegations of
the petition are denied. Neither defendant charges
plaintiff with negligence.

The lower court awarded plaintiff judgment for $600,
and she prosecutes this appeal, complaining of the inadequacy
of the amount of the judgment. Both defendants answered the
appeal, praying that the judgment in favor of plaintiff
be reversed. Morgan & Lindsey also filed a plea
of prescription in this court identical in salient parts
as the one filed in the lower court.

Plea of Prescription.

Defendants are sued as joint tort-feasors. If they sustain
this relationship to each other, their liability to
plaintiff, if any, as a result of their offense, is
in solido. No citation of authority in support of
this principle is necessary. Two of the most recent
cases so holding are:
Gardiner v. Erskine et al.,
170 La. 212, 127 So. 604;
Jones v. Maestri, Com'r,
170 La. 290, 127 So. 631.

It has been frequently held that a suit by a
guest or customer of the tenant against the landlord
or tenant for damages caused by a defect in the
leased building is one ex delicto, and is therefore
barred by the prescription of one year.
Civ. Code, art. 2315. However, "a citation served
upon one debtor in solido, or his acknowledgment of
the debt, interrupts the prescription with
regard to all the others and even their heirs."
Civ. Code, art. 3552.

It is urged by Morgan & Lindsey that the service
made under the original petition, which was quashed
by the court, was so illegal, null, and void, that
no effect whatever followed same; that the current of
prescription against it was not even interrupted thereby,
and that as a valid service was only made on
it on May 28, 1932, over one year after the
alleged injury, that prescription barring the suit
had attached.

We find it unnecessary to pass on this question. It is
our opinion that the timely service made on Judge
Holstead interrupted the running of prescription
against Morgan & Lindsey. We think there was perfect
solidarity of obligation between these defendants, and, if
this is true, there can be no doubt of the
correctness of our conclusion.

Counsel for Morgan & Lindsey contend, and
correctly so, that, if the solidarity of obligation
between it and Holstead is imperfect, the service
on the latter did not interrupt prescription as
to the former, citing:
Civ. Code, art. 2077;
Corning v. Wood,
15 La. Ann. 168;
Jacobs v. Williams,
12 Rob. 183;
Gay v. Blanchard,
32 La. Ann. 497, 502.

In the first of the cited cases it was held by
the court that an acknowledgment of the debt by
the maker of a note does not interrupt prescription as
to the indorser. The court said: "They are not debtors
in solido in the meaning of arts. 2092, 3517 of
the Civil Code, which declare that a suit
brought against one of the debtors in solido, or
his acknowledgment of the debt, interrupts prescription
as to the rest. Per Curiam: The maker and endorser do
not bind themselves at the same time, or by the
same contract, but by different and successive contracts,
without any privity or reciprocity."

In the second of these cited cases, it was held
that suit against the acceptors of a bill of
exchange does not interrupt prescription as to the
drawer and maker. This decision expressly affirms the
principle enunciated in
Jacobs v. Williams,
referred to above, and states that that decision
overruled the earlier one of
Allain v. Longer,
4 La. 151, 152,
which held that a suit against an indorser of
a note interrupted prescription as to the maker
and other indorsers.

In
Gay v. Blanchard,
supra,
the court succinctly gives the reasons for the
holdings in the previous cases, although there was
solidarity of obligation as between the person cited
and those not cited before prescription accrued.
The court said:

"Solidarity may be perfect or imperfect. In the
former the co-obligors are mandataries of each other;
in the latter they are not. (3)5C

"It is perfect, and the obligors are the mandataries of
each other, when by the same act, at the same time,
they bind themselves to the performance of the same
thing. It is imperfect (and they are not mandataries of
each other) when they bind themselves to the same
thing by different acts or at different times."

Basing their argument upon the doctrine of these
three cases, counsel for Morgan & Lindsey say
that, if both defendants are liable to plaintiff for
the injuries complained of, such liability arose,
not from the same act, nor at same time, but
from different acts and at different times, under
different rules of law; that the tenant's obligation springs
from the general law of negligence (article
2315, Civ. Code), while that of the landlord arises
from special provisions of the Code.

Article 2077 of the Civil Code and the decisions cited
by defendant, commented on
supra,
have reference to conventional obligations and not to
liability consequent to tortious acts. This latter
liability is founded upon the law of negligence
appearing under different titles and chapters of the Code.
Article 2322, falling under the chapter dealing with
"Offences and Quasi Offences," reads as follows:
"The owner of a building is answerable for the
damage occasioned by its ruin, when this is caused
by neglect to repair it, or when it is the
result of a vice in its original construction."

To the same effect is article 670, appearing under the
chapter "Of Servitudes Imposed by Law," which
reads as follows: "Every one is bound to keep his
buildings in repair, so that neither their fall,
nor that of any part of the materials composing them, may
injure the neighbors or passengers, under the penalty
of all losses and damages, which may result from
the neglect of the owner in that respect."

It is negligence, a breach of legal duty, to be guilty of
the acts of commission or omission mentioned in these
articles.

It has been held that, in addition to the landlord's
duty to the public as regards maintaining his building
in safe condition, there is a correlative duty on the
tenant who, tacitly or expressly, invites customers
into the leased building to see to it that life and
limb are safe from injury therein from defects caused by
decay or otherwise. The customer has the right to assume
that both the owner and tenant will discharge the
obligation imposed on them by law, and where it appears
that they have not done so, and damage results, they
are both responsible. The injured person may sue either
or both.
Williams v. Liberty Stores,
148 La. 450, 87 So. 233;
Theodore v. J. G. McCrory Co.,
17 La. App. 684, 137 So. 352.

In the latter case plaintiff recovered damages for
splinter from the floor of the leased building piercing
his foot through hole in sole of the shoe. In the
first case plaintiff's contributory negligence barred
recovery.

In the case at bar the negligence of which
plaintiff complains has two phases: (1) Existence of the
hole in the floor before the building was leased to
Morgan & Lindsey, and (2) allowing it to
remain without repair after the lease. The negligence
of defendant Holstead embraced both phases while that of
the tenant only embraced the second one. From the moment
of occupancy of the building by the tenant its negligence
and that of the owner became joint and concurrent, and
thus continued to the time of plaintiff's injury. It
is shown that the tenant knew of the defect in the
floor long before the accident happened. Pursuing this
line of reasoning still father, and applying the rule
contended for by counsel, we find that from the fact of
execution of the contract of lease, and thereafter to
the time plaintiff was injured, defendants were legally
bound to the performance of the same thing, viz., to
see to it that the leased premises were safe for customers
therein. By the same act and at the same time
they bound themselves, or were held bound by law,
to the performance of the same duty.

We think the plea of prescription was properly overruled.

On the Merits.

A discussion of the facts and law involved in the
consideration of the plea of prescription trenched, to
some extent, upon the issues involved in the merits of
the case.

Defendant's building faces east. In its south side
are two lines of counters about 31/2 feet apart, running
from a distance of 6 feet from the front door to the
rear of the building. In the aisle between these counters,
near the center thereof, are three metal ventilators in the
floor. The first one is 18 feet from the door and the
second one is 12 feet and 11 inches from the first one.
The third is farther towards the rear of the building. These
ventilators measure 12x15 inches, and when properly installed
should be on a level with the floor on all sides, having
the sleepers or other substantial foundation to rest on. The
ventilator nearest the front (east) door was in its entirety
below the floor level, from one-eighth of an inch to one-half
of an inch, according to the testimony of mechanics who gave
evidence on the subject. On its east (front) side one of
the floor boards (31/4 inches wide) failed to reach it
by 1 1/16 inches. As the floor was 13/16 of an inch
thick, the opening there was 3 1/4 inches by 1 1/16 inches
by 13/16 inches, with the sleeper as its bottom. Trash
and floor sweep, accumulating for some time, had filled
this hole to, or near, a level with the floor. Plaintiff asserts
and testified that, as she was walking from the front of
the building, along beside the counter on her left, the heel
of her shoe entered this open space, was fouled, causing
her to lose her balance and to fall at length on the
floor. She had been in a different part of the building selecting
some presents for some friends graduating from high school,
and as she was about leaving the store she met her
husband, who was entering, and, desiring to acquaint him with
her selections, had begun, with him immediately behind her,
to return to where the presents were located, when she
fell. She was wearing a low quarter shoe with a medium
size heel—"common sense" heel, as described by her.

Defendants offered some testimony in support of their
contention that plaintiff did not fall at the first ventilator,
but, without detailing all the evidence on the question, for
and against their position, we are convinced the testimony
clearly establishes that the accident happened at the first
ventilator, the one where the opening in the floor was.
Plaintiff is fairly positive this is where it occurred, and
her husband, who was by her side or immediately behind her
at the time and lifted her from the floor, is positive
that it happened there, and is positive he saw the heel
of the shoe come out of the hole as she fell. We are
satisfied that the opening in the floor was so obscured
by the deposit of floor sweep that it was observable only
on close inspection, such as is not usually given by,
nor required of, one whose business is only to make a
purchase. The shoe worn by plaintiff at time of the
accident was not offered in evidence, but, as the opening at
the side of the ventilator was only 1 1/16 inches wide, it
is not improbable, but fair to assume, that the heel on
plaintiff's shoe would fit tightly therein, when forced
by the weight of the body, thus effectually tripping her as
she attempted to make the next step. The floor sweep was spongy
and allowed the heel to force its way to or near the bottom
of the hole.

The fact that plaintiff fell at length forward on her left
side, knee, and elbow is strongly corroborative of her contention
that her heel did hang in the vacant space in the floor,
and argues as equally strong against the suggestion by
defendants that the fall was due to a simple turning of the
right ankle while the foot was on smooth surface. Had she
experienced an ordinary turning of this ankle, it is
almost certain she would have fallen towards her right.

Plaintiff had walked down the aisle containing the ventilators
a few moments before she fell and had not seen the defective
condition of the floor which caused her to fall. She had
no knowledge of such defect prior to being injured.

The record does not definitely disclose the origin of
this vacant place in the floor, but tends to establish that it
was left there when the floor was put down, or, if it was
at that time filled with wood, that the filler worked
out and was not replaced. Mr. Stinson, defendant's manager
and one of its stockholders, says the hole was there when
his company rented the building six years before the case
was tried, but he never called it to the attention of the
lessor, nor made any effort to repair it himself.

If the lessee did not choose to make the repairs to insure
safety to its customers, which would have required little
effort and negligible expense, it was their obvious duty
to have provided adequate means of giving notice to
such customers of the presence of the danger. It was also
their duty to have notified the lessor of the existence of
such dangerous condition so that he could have repaired it.
Civ. Code, arts. 2692, 2693, 2694. If the owner, after
being advised of the condition in the floor, had not
repaired it, then the lessee could have done so at
the expense of the owner. Civ. Code, art. 2694.
Boutte v. N. O. Terminal Co.,
139 La. 945, 72 So. 513;
May v. Schepis,
147 So. 717, decided by us April 28, 1933, and
authorities therein cited.

It is the duty of every owner of a building to keep himself
informed as to its condition. He is by law held to
knowledge of such condition whether, as a matter of
fact, he possesses such knowledge or not. Articles 670
and 2322 of the Civil Code are definite in this respect.

In
Richard v. Tarantino,
15 La. App. 311, 131 So. 701,
it was held that a petition that set forth that plaintiff,
a daughter of the lessee, was injured by the leg of
the chair, in which she was sitting, going through a hole
in the floor, of which petitioner had knowledge for
several months, disclosed a cause of action. The fact
of knowledge of existence of the hole alone did not show
contributory negligence. Other facts might and could
have affected the situation in such way as to destroy
or overcome the inference of such negligence arising
solely from the knowledge mentioned.
Vanosby v. Creidman,
15 La. App. 488, 131 So. 702;
Thompson v. Moran,
19 La. App. 343, 140 So. 291.

It is the duty of a store proprietor to provide safe place
for his customers to trade with him. They are tacitly, if
not expressly, invited to enter the building and inspect
and purchase goods. By the very nature of things
he has the right to rely upon the assumption that the
entrance to the building and its floor, whereon he must
stand or walk, as his needs may require, are safe
for such uses on his part. He has the right to assume
that the proprietor has done all that the law
requires of him with reference to the safety and
protection of customers lawfully within his place of
business. It is only where the danger to life or limb
is obvious, within plain view, or its presence
known to the injured customer, will the right to recover
for damages traceable to such a danger be denied on
account of contributory negligence.
Williams v. Liberty Stores,
supra.
In this case it was held that "it is negligence for a
store proprietor to leave a box in the aisle used by
customers inspecting merchandise." The plaintiff did
not recover because the box was in full view for a
distance of 27 feet, and her failing to see it was held to be
contributory negligence barring recovery.

"1. Store proprietor must afford patrons safe place in
which to trade with him.

"2. As regards liability to customer whose foot was
pierced by splinter from floor, presumption existed that
store proprietor knew premises were dangerous,
in absence of evidence to contrary. In absence of
evidence to contrary the store proprietor was presumed
to have known that premises were dangerous, for a wooden
floor, which has so far decayed as to split up into
fragments, is manifestly unsafe.

"3. Evidence in customer's action against store
proprietor for unsafe condition of floor,
resulting in customer's foot being pierced by splinter,
held to justify recovery."

The rule is well expressed in 16 R. C. L. 1096, §614.

We are convinced that plaintiff's case has been made
out against both defendants, and shall now consider the
quantum of damages, which we are asked by plaintiff to
increase over the amount allowed by the trial judge.

Plaintiff was dazed by the hard fall on the store floor,
and was helped by her husband to a box nearby, provided by
one of the store employees. She there experienced intense
pain and was threatened with faint for half an hour, being
fanned by her husband during the time. They left the
store and returned to their home. She says that on
account of the financial condition of her husband she
undertook to treat her injuries herself, not consulting a
physician, until May 14, when her two daughters from
Shreveport visited her and insisted that the aid
of a physician be secured. This was done. The following
findings of fact of the trial judge on the question of
nature and extent of plaintiff's injuries are supported
by the evidence in the case, and we adopt same:

"Plaintiff is 46 years of age. As the wife of a
farmer it has been her custom to perform the usual household
duties of a farmer's wife. Her general health,
apparently, is frail. She weighs now 96 pounds.
Two years ago she weighed 120 pounds. For three months
after the accident she suffered great pain in her foot
and ankle. Immediately after the accident her foot
and ankle turned black and became badly swollen and remained
in that condition for several months. Her foot and
ankle still swell considerably, and especially at night after
she does her day's work, giving her considerable pain.
Changes in the weather cause pain in the ankle. Her ankle is
weak and she can not stand on it very long at times. Her
injured ankle has a tendency to turn inwards when she
walks or stands onit. Thus, in a manner, she describes
her condition at the time of and since her injury.

"Dr. J. J. Bennett examined and has treated her injury
on several occasions. His first examination was on
May 14, 1931. He found her right ankle badly swollen.
He recommended that she have an X-ray made of the
injured ankle. That was done and the X-ray showed that
there were no broken bones. His diagnosis
revealed that the ligaments on the outside of the right foot were
torn, producing what is known as a sprain. There was
evidence of a hemorrhage under the skin. He examined the
injured foot again just a few days before the trial
and found some adenia and a lack of proper motion in
the foot. He says there will always be some laxness on
the outer side of the foot, due to the sprain,
and that the ligaments in that area will always be
weak. The only remedy is to put a brace on the foot
to hold it straight. It is his opinion that her foot
will never be normal again.

"It is evident from the testimony that plaintiff has
suffered considerable pain from her injury. She did
not consult a physician for some two weeks after the
accident, and has since consulted her doctor very infrequently."

The trial court, however, in the face of its own
findings, quoted above, says that the injuries sustained by
plaintiff were not of a serious nature. The fact
that she did not at date of trial (16 months after the
accident) have normal use of her injured foot; that it
was swollen some, a condition that would become aggravated
when she walked or stood on it for considerable periods of
time; that adenia of the foot was present a few days
before trial, and that she had lost nearly 30 pounds in
weight since being hurt—we think disclose the
injuries to be very serious and doubtless painful.

The amount of damages given by the lower court is entirely
out of line with the awards of the appellate courts in
similar cases, and, we think, wholly inadequate compensation for
the pain, discomfort, and suffering the record
discloses plaintiff had to endure, and, in addition to
this, it is not certain her foot will ever be of
the use to her it was before the injury. All things
considered, we think the judgment should be increased to $1,200.

For the reasons herein assigned, the judgment of
the lower court is increased to $1,200, and, as thus
amended, it is hereby affirmed.